Cannabis Act Offences
The Charge
The newly enacted Cannabis Act provides a framework for legalizing, regulating and restricting access to cannabis in Canada. The goals of the Act are to restrict youth access to cannabis and to provide for the legal production and distribution of cannabis while promoting safe use and public awareness of the health risks associated with cannabis. The Act imposes serious criminal penalties on people who break the law, especially those who import or export cannabis illegally, produce cannabis illegally or provide cannabis to youth.
What is legal?
Subject to provincial or territorial restrictions, adults who are 19 or older (in British Columbia) may legally:
Purchase limited amounts of fresh cannabis, dried cannabis, cannabis oil or cannabis plants from authorized retailers;
Possess up to 30 grams of legal dried cannabis or equivalent in non-dried form;
Consume cannabis in locations authorized by local jurisdictions;
Grow up to 4 plants per household;
Share up to 30 grams of dried cannabis or equivalent with other adults.
What remains illegal?
All possession, production and distribution outside the legal system of the Cannabis Act remains illegal. The Act sets out various offences for “Criminal Activities,” with up to a maximum penalty of 14 years in jail.
To protect youth, the Cannabis Act prohibits selling cannabis to anyone under 18 years of age. Giving or selling cannabis to youth or involving a youth to commit a cannabis related offence (such as distribution) are punishable by jail.
Possession of illicit cannabis is unlawful under the Act. Illicit cannabis is cannabis obtained from a source other than a government or other licenced cannabis retailer.
Ticketable Offences
The Cannabis Act, under section 51, sets out that for the more minor cannabis offences, police may commence proceedings by issuing a ticket and a summons to attend court. The types of ticketable offences include minor contraventions such as:
- Possessing more than 30 but less than 50 grams of dried cannabis or its equivalent;
- Possessing up to 50 grams of illicit cannabis;
- Distributing or selling up to 50 grams of cannabis;
- Possessing 5 or 6 cannabis plants.
The fine for most Cannabis Act ticketable offences is $200.00. Of note, if a person pays the fine within the time period set out by regulation, the person, under s. 52 is found guilty but deemed to have received an absolute discharge.
Criminal Offences
Other than the ticketable offences for minor cannabis offences, the Cannabis Act calls for the criminal prosecutions in cases where, for example, the person is charged with:
- Possessing more than 50 grams of dried cannabis (or its equivalent) in a public place;
- Distributing more than 50 grams of dried cannabis (or its equivalent);
- Distributing cannabis to an individual under 19 years of age (in British Columbia);
- Exporting cannabis;
- Producing, cultivating, propagating or harvesting cannabis in excess of 6 plants without authorization.
The Defence
Because the Cannabis Act retains the power to regulate and punish for “criminal activity” associated with unauthorized distribution and possession of cannabis, criminal law defences will continue to apply to cannabis prosecutions.
Unreasonable Search
Section 8 of the Charter guarantees the right to be free from an unreasonable search. As experienced drug lawyers, we will analyze the actions of investigating officers to test whether police have, in fact, conducted a lawful search, based on reasonable grounds. Where police overreach their authority, and conduct a search based on a mere hunch or suspicion we will apply to the court under s. 24(2) of the Charter to have the evidence obtained through the unreasonable search excluded at trial. Without the admission of the cannabis that was unlawfully obtained, the court will find insufficient evidence to convict.
The Cannabis was not for the purpose of distribution or sale
In order to prove that possession was for the purpose of distribution or sale, the Crown will usually bring a police expert to court who will testify that the circumstances of the seizure, along with the packaging and weight of the cannabis tend to prove that the cannabis was intended to be distributed. Our experience in defending drug charges allows us to develop arguments aimed at challenging expert opinion that the circumstances of the cannabis seizure are only consistent with distribution and not simple possession. In many cases we have succeeded in negotiating possession for distribution charges down to simple possession charges to avoid jail sentences for our clients.
Lack of Possession
In many situations, accused persons are arrested without cannabis directly in their possession. For example, they may be driving someone else’s car and cannabis is found in an unmarked box in the trunk. A roommate may be charged with possession for distribution but none of the cannabis is found in their personal space of the residence. In these situations, the Crown will seek to prove possession through indirect, or circumstantial evidence. As experienced defence lawyers, we understand the Crown’s burden in proving that an accused had the requisite knowledge and control of the cannabis in order to be convicted. We are dedicated to holding the Crown to the high standard that the law requires when prosecuting cannabis offences. We are committed to defending our client’s rights as guaranteed by the Charter.
